By Dr. Ken Broda-Bahm:
I have had a long-term interest in the Reptile approach to plaintiffs' trial persuasion. The perspective, articulated by David Ball and Don Keenan in several books and in seminars around the country, focuses on the advice to your case around the primitive (aka "reptilian") need for security. My interest isn't so much based on a belief that every foundation or implication for the theory is accurate, but on the fact that the approach has proven to be very popular and its results have been very convincing to its adherents. The Reptile might also be the closest thing the field of trial persuasion has to the kind of "Grand Theories" that animate other areas of psychology and communication. And from a practical perspective, having a discussion or debate about the Reptile can also help illuminate a number of other useful consideration related to legal persuasion for plaintiff, defense, or prosecution. This post pulls together my top 9 posts of or related to Reptile-style persuasion in trial.
Before a recent presentation, I was chatting with a Texas medical malpractice defense attorney when she shared the following: Plaintiffs' lawyers have changed. They're all talking about "safety" now, and that word is finding its way into every deposition: "What is the safe procedure?" or "What would've kept Mrs. Johnson safe?" They're all talking about safety and security instead of standard of care. I replied, "Oh, that is the Reptile." She hadn't yet heard about the popular book by David Ball and Don Keenan, so I explained, it's a theory for trying plaintiffs' cases by portraying the defendant's conduct as a threat to jurors' own safety and the safety of others. By framing arguments in terms of our most biologically basic need for security, the theory goes, plaintiffs are able to successfully tap into jurors' primitive or "reptile" mind. And when the Reptile decides, our conscious mind and reason-giving ability follows. Based on that unifying concept, the perspective has taken the plaintiff's bar by storm, spinning off more books as well as frequent trainings. "Cases are not won by logic," they write, "you need to get the Reptile to tell the logical part of the juror’s brain to act on your behalf. To get the Reptile to do that, you have to offer safety." Continue reading.
Earlier this Spring, a courthouse in Jackson Mississippi was actually invaded by snakes. That story might have made some in the plaintiff's bar smile a bit, since in their view, Reptiles have been invading American courtrooms across the country for a few years now. Reptile: The 2009 Manual of the Plaintiff's Revolution by David Ball and Don Keenan, as well as associated books, DVDs and training seminars, have significantly influenced plaintiffs' methods of trying cases, and the philosophy currently claims close to $5 billion in associated verdicts. Adherents believe that by framing legal claims as basic appeals to community and personal safety, they are able to wake up jurors' reptilian minds and motivate verdicts in their favor. As I've written before, there is reason to believe the theory rests on a dubious foundation (the largely discredited belief in a reptilian brain governing the rest of our decision making), but that it works nonetheless (because it encourages persuaders to put motivation front and center). Continue reading.